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Grandparents’ Rights Lawyer for Visitation and Custody

Grandparents and grandchildren can have a tight emotional bond. Texas does not grant intervention rights to grandparents when a family unit is intact and healthy, and the children are well-adjusted because a presumption exists that parents will always act in the best interests of their children.

Grandparents may, however, petition for court-ordered visitation and even custody in certain situations that arise when, as the Texas Practice Guide puts it, “the original family unit is fractured.”

Our attorneys at Goldsberry, Portz & Lutterbie, PLLC, understand the emotional turmoil that exists in these situations, and we can counsel you on your options as Grandparents, as you deal with these significant challenges.

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What Visitation and Custody Rights do Grandparents have in Texas?

The right of grandparents to visit their grandchildren is not absolute in Texas.
The custodial parent has discretion to allow or deny visitation and is expected to do what is in the children’s best interests.

If you are a grandparent and meet specific requirements regarding your relationship with the child’s parents, a child custody attorney can help you file a petition for visitation rights.

A family law attorney will underline the importance of meeting the “harm standard,” which says children may suffer emotionally or physically if they are denied access to a grandparent.

Parental incompetence also has a substantial effect on the legal rights of grandparents. Grandparents have a stronger legal standing to seek visitation or custody if a parent is considered unfit due to substance abuse, incarceration, mental health issues, or other reasons. Proving a parent is unfit requires significant evidence, such as documenting the parent’s problems and how they affect the child’s welfare. A family law attorney can help you establish this documentation.

Can a Grandparent Petition for Visitation or Custody?

Grandparents are included in the category of relatives who may apply for custody of a child in Texas. According to the Family Code, they may receive custody of or visitation with their grandchildren if such an arrangement is in the best interests of the children and at least one of the circumstances below applies:

  • The parents have divorced.
  • There is evidence that the child has been neglected or abused by the parent.
  • The parent has died, been declared incompetent, or been incarcerated for at least three months prior to the filing of the petition.
  • The parents’ rights have been terminated by the court. In this instance, the grandparents are required to meet certain deadlines and requirements pertaining to past contact or sibling adoption.
  • One or both parents voluntarily agree to bestow parental rights and responsibilities to the grandparent.

 

The court may also grant grandparent visitation if the child has lived with the grandparents for at least six months. If parental rights are terminated by the Texas Department of Family and Protective Services, grandparents may seek custody (known in Texas as a managing conservatorship) of their grandchildren within 90 days of the termination date.

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How to File for Grandparent Visitation or Custody

Seeking visitation or custody rights usually entails following the legal process.

Filing a Petition:

Grandparents need to submit a petition in the relevant Texas court, outlining their connection with the grandchild and the grounds for seeking visitation or custody.

Serving Notice:

The child's parents must be informed of the petition, allowing them a chance to reply.

Court Hearing:

A hearing is arranged for both parties to provide evidence and arguments. Grandparents need to present convincing proof that their participation is in the child's best interest.

Court Decision:

The court will decide based on the child's best interests, taking into account the evidence provided.

It is important for grandparents to understand that legal standards and interpretations may change over time. Court cases and rulings can change precedents for Grandparents’ Rights and impact the outcome of potential filings. It is important to consult with a family attorney that is up-to-date with current court rulings where this is concerned.

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Can a Parent in Texas Give Grandparents Custody of their Child?

In Texas, a parent can give grandparents custody of their child, but it’s not as simple as just signing away custody. The Grandparent can file for custody with parental consent and both parents must agree to give them custody.

Other options for grandparents to have decision-making and physical possession of a child without giving up full custody is for parents to agree to one the following to either a power of attorney, guardianship, or possessory conservatorship as discussed below:

Power of Attorney:

Parents can grant a power of attorney to grandparents allowing them to make specific decisions for the child, like medical or educational choices, without changing custody. This is a temporary agreement and can be revoked by the parents at any time.

Guardianship:

When parents are unable to care for their children, grandparents can pursue legal guardianship, enabling them to make decisions regarding the child’s well-being while possibly maintaining the parents’ legal rights.

Possessory Conservatorship:

Possessory conservatorship grants grandparents certain rights without granting full custody. This can allow grandparents’ visitation, access to medical, dental, psychological, and educational records, consent to medical treatment decisions in the event of an emergency health situations, make decisions regarding the child’s education, and to attend school activities. However, it does not give the grandparent the right to make decisions regarding where the child lives or to deny the parent access to their child.

Grandparents’ Rights When Children are Adopted by a Stepparent

Grandparents retain their rights to reasonable contact with their grandchildren if the latter are adopted by a stepparent. It is not, however, an automatic right. Grandparents must demonstrate that loss of contact could be emotionally or physically harmful for the children. Access rights could potentially be lost, however, if the children are adopted by any other party and both parents are deceased or have lost/given up their parental rights.

Can Grandparents Receive Child Support and Financial Assistance?

Grandparents who gain custody or a managing conservatorship of their grandchild may be eligible to receive child support from the child’s parents. Moreover, they may be eligible for financial aid from the state, such as subsidies provided to kinship caregivers. It is essential for grandparents who are assuming a caregiving role to consult with a family law attorney who can help access the financial support they need to care for their grandchildren.

How are Retirement Benefits Divided During Divorce?

Retirement benefits accumulated by either spouse during the marriage are classified as community property and are eligible for division in the event of a divorce. This includes:

  • pensions
  • 401(k)s
  • IRAs
  • and other retirement accounts.

 

A Qualified Domestic Relations Order (QDRO) might be necessary to distribute these benefits, guaranteeing that each spouse obtains their equitable portion without facing penalties or avoidable taxes.

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If you are a Texas grandparent who wants to preserve a close and loving bond with your grandchildren, call our Texas City office at 281-485-3500 or use our contact form to make an appointment with one of our attorneys.

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